"Advocacy" a Chapter from Albert S. Osborn's "The Problem of Proof"

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Virginia Law Register

Voi.. 8, N. S. ] DECEMBER, 1922. [ No. 8

"ADVOCACY" A CHAPTER FROM ALBERT S. OSBORN'S
"THE PROBLEM OF PROOF"

There is no other relation in human affairs exactly analogous
to that of attorney and client. It is a relation that in its intimacy
and responsibility is an example of supreme trust and confidence*
By it we ask another for the time and the occasion to be our-
selves. It is as if for the time being we transfer our individual-
ity to another who then becomes our mind, our voice, and even in
a degree, our conscience. It is not strange that this relation from
the earliest times has been most closely guarded, and that there
are inseparably connected with it certain rules of honor, which,
to disregard, puts the brand of infamy upon the transgressor.
To violate this sacred trust and be disloyal to a client is de-
servedly the unpardonable sin of an attorney. By this betrayal
he sinks lower than by any other act of dishonor

In the early history of advocacy this relation of advocate and
client was not one of ordinary hundrum affairs It was a noble
service of honor and, if need be, of self-sacrifice of the strong
for the weak, of the able for those who could not protect them-
selves. It was a kind of service for which, for many genera-
tions in human history, one who represented another would' scorn
the offer of any pay for the service rendered. Even to this day
the barrister in England cannot collect by process of law a bill
for services as a barrister. The debt is still a debt of honor.

In the course of time and as a result of the complications of
civilization, the attorney's acts became, not occasional altruistic
efforts, but a kind of service which merited a return that at first,
however, was somewhat disguised under the term of honorarium.
In the course of time a profession was developed which in mod-
ern times retains some of the ancient qualities, but which has
taken on characteristics quite in contrast with some of those that
existed during its early history.

562 8 VIRGINIA LAW REGISTER, N. S. [ Dec,

Certain rules and practices were gradually developed and cer-
tain precedents established that were necessary to stability. It
was found that a trial at law must necessarily be conducted in
accordance with certain rules, and it became the business of the
lawyer to see to it that the interests he represented were not en-
dangered by the violation of these rules. At any time he could
object to what he considered improper, and as time went by, cer-
tain rules of procedure were developed. Rules of some kind
were, of course, absolutely necessary, but one of the weaknesses
of the administration of the law from the beginning has been
that the rules have tended to take on an almost unchangeable, if
not sacred, character, and too many times have themselves de-
feated the very ends they were designed to promote.

Objections, exclusions, and exceptions are no doubt necessary,
and at any rate are inevitable, in a trial at law, but the proper
control of this phase of law practice is one of its greatest prob-
lems. One unfamiliar with the practice of law is astounded to
learn that certain things cannot be done in court that common
sense would suggest ought to be permitted. Obstructive tactics
within the law may be wisely employed, but often are used in a
manner that only tends to delay and to defeat justice. These
tactics often at once arouse the suspicion of a juryman, or in-
deed of anyone not familiar with law practice. There are many
thoughtful men in the legal profession who are even coming to
think that many of the revered rules, oi evidence should be radi-
cally changed, if not abolished altogether.

There is a type of advocate who, in his use of these various
rules, is properly described as the negative or obstructing advo-
cate. His business is not the proving of anything, but the pre-
vention of proof. He succeeds if he prevents the facts from be-
coming known. While thus engaged he tries to make it appear
that he is defending the eternal principles of justice and the very
foundations of civilization and incidentally, of course, his client.
His fighting methods are many times similar to those of the cut-
tlefish which, by discoloring or muddying the water and thus
ereventing anything from being seen, defends itself. Some of
the ancient rules are often of great assistance to these men.

An advocate of this kind usually will be against the facts, a
defender of a guilty man, or a representative of a fraudulent

1922. ] "advocacy." 563

claim. He accepts employment to win the case for his client.
This end he will attain fairly, if possible, but if he cannot win
fairly then he will employ other means. His methods are tinged,
if not saturated, with insincerity and unfairness, and his final re-
source is perjury. He objects strenuously to everything that
tends to injure his chance of success, and viciously attacks all
opposing witnesses. And all the time, he who protects fraud and
crime and cheats justice, poses as the zealous guardian of the
ancient and revered rules and precedents.

Certain of these common abuses of advocacy can hardly be
condemned with too great severity. They are flagrant, cruel,
and shocking to the moral sense of all whose sensibilities have
not become dulled by familiarity with them. They should not
be excused and condoned, but should be repudiated by the great
respectable majority of an honorable profession.

In connection with some of these abuses, openly practiced, a
moral tone is exhibited which would be looked upon with scorn
in any other field of human activity. Boasts are made of win-
ning cases against the facts! It is thought to be commendably
clever to destroy the effect of honest adverse testimony and thus
defeat the ends of justice. Crime is thus encouraged and fraud
made profitable. This conduct, at least tacitly, is often praised
in discussion of the practice of law. This woulc be paralleled if
a business man should be praised for his skill in cheating his
neighbor across the way. As civilization advances this law prac-
tice, which openly defeats justice, will come to be looked upon
with the scorn that it deserves.

Certain books on advocacy will also become obsolete, or will
be revised so they are not in effect manuals teaching how to de-
feat justice. Their chapters on methods and tactics will be not
simply directions as to the most effective ways of destroying the
opponent's case and the testimony of honest witnesses. One
would not gather from certain parts of certain books of this
class that the purpose of courts of law is to establish justice.
Think of a discussion of the practice of medicine with only a
secondary or remote thought of the life of the patient !

There are lawyers who at once get purple with rage at any
criticism of the law or of legal procedure of this character, es-

564 8 VIRGINIA LAW REGISTER, N. S. [ Dec,

pecially if criticism is made by one who is not a lawyer. These
men apparently look upon the law as something finished by cer-
tain more or less wise men many years ago for their use as a
business. They resent criticism as a kind of interference with
what they consider to be their own private affairs. To them the
law is not a profession but a trade. The lawyers of the type de-
scribed in Jarndyce and Jarndyce found no fault with the ad-
ministration of the law of their day because it served their pur-
poses, but there were those who saw its faults and corrected
them. There still are Jarndyce cases, but their numbers are
growing less through the efforts of judges, lawyers, and legal
authors who, like the creator of the Jarndyce case, see the faults
and gradually correct them.

There can hardly be a more responsible and important duty
than that of the attorney called upon to plead the cause and pro-
tect the rights, or even the life, of another. As in the old days
he still is the brain and the voice of his client. He becomes a de-
fender and an advocate of the rights of him for whom he speaks.
As his ability in furthering the interests of his client is the meas-
ure, of his success as a lawyer, the business of advocacy in all
its bearings must naturally be a subject of great interest to him.
So important is it and so great is his interest that he is con-
stantly tempted to overdo it. The undue emphasis of advocacy
is one of its common weaknesses.

One of the most important things that the lawyer must do in
order to be successful is to lead others to his own point of view,
and his unwise overemphasis of the spirit of advocacy may be-
come the enemy of persuasion. The sagacious trial lawyer seeks
to protect his client's interests, but in doing so does not make of
himself a prejudiced, unfair partisan. Many lawyers defeat the
ends for which they strive by unwittingly trying too hard to pro-
tect a client's interest. If they appear for the defense, their ex-
cessive zeal and obvious bias gives the impression that by every
means, fair or unfair, they will endeavor to prevent the guilt of
their client from becoming known.

These advocates will not grant in any case, civil or criminal,
that the opposition has even a shadow of a leg to stand upon. In
court they object on the slightest provocation, and as a result of

1922. ] "advocacy." 565

these constant objections and their partisan attitude, the effect of
everything they say is lessened. Their violent contentions, with
equal effect, might as well be whispered in the words of some
dead language instead of being spoken in the loud, rasping, dis-
agreeable tone too often heard in court rooms. These men ap-
pear to be very active and busy attorneys, but because of their
unwise zeal they give the impression that they are on the wrong
side of the case. By their activity and intensity they lead a jury
to think that they really would do quite well if they could only
get on the right side of some good case.

The attorney whose too frequent objections are constantly be-
ing overruled also gives the impression to the untrained juryman
that he does not know what the law is and therefore is con-
stantly being ruled against by the court. The too zealous advo-
cate, by his whole conduct, finally arouses a permanent suspicion
as to the sincerity of everything he says and does. The- force of
his incidental arguments and his final argument is greatly di-
minished, if not wholly nullified, because his manner and meth-
ods throughout the trial have been unfair and insincere. This
advocate who is habitually insincere often possesses no more per-
sonal magnetism than a phonograph and is utterly devoid of ordi-
nary human sympathy. He is a mere legal machine. This ha-
bitual mental attitude not only dulls the keen edge of conscience,
but benumbs the higher judgment and makes impossible the
highest efficiency.

By his unwise activity, his venom, his un c airness, and his
vociferous defense of his client's interests, the advocate may win
the applause of the shallow and unthinking, but at too high a
price. By these tactics he is at the same time laying the founda-
tion for defeat and, what is more unfortunate, for a reputation as
one of that class of undesirable citizens in certain communities
known as shysters. These men, often more dangerous and unde-
sirable" in a community than burglars and highwaymen, debase
and disgrace an honorable profession. They can still be found
at many county seats, but the vigorous activity of bar association
vigilance committees is gradually lessening their activities in
many communities.

The uncontrolled spirit of advocacy also has a tendency to

566 8 VIRGINIA LAW REGISTER, N. S. [ Dec,

deaden, if not to destroy, that delicate, elusive, but most impor-
tant of qualifications which we call tact, which has tremendous
force in achieving success. It is a misfortune for a young law-
yer to train himself in insincerity by advocating causes in which
he does not believe. There are those who wisely advise that even
in friendly debate it is not a good practice to take either side of
any question. Mental agility is thus acquired at the expense of
sincerity. This sort of training is good for the mind, but bad
for the soul.

Undue emphasis on the spirit of advocacy also leads an en-
tirely conscientious attorney to overload his case with evidence,
to overtry it in every way, and to over-emphasize everything that
he presents or discusses. The important and the trivial are with
him both apt to be put into the superlative degree, and his whole
conduct is governed by a partisan intensity which prevents him
from applying ordinary sane judgment to many things. Many
trial attorneys of this class apparently sit on springs in court and
jump into the air at every provocation, with objections to every-
thing unfavorable to their own contention and intense arguments
on every point until all are weary and nobody is convinced. The
most trivial point is argued with the same intensity that is given
to the vital issue in the case, and as a result nothing is empha-
sized because everything is emphasized.

The're is also another important ethical phase of this question
of advocacy that deserves consideration. The unforgivable sin
in an attorney is the betrayal of a client's interests. This relation
of attorney and client "is of so confidential and intimate character
that custom and law have properly thrown around it the utmost
protection. The relation is, however, sometimes interpreted and
acted upon in a way that leads directly away from the interests
of justice as well as of morals. Loyalty to a client is a plea
which, too often it is assumed, will cover almost any sin from
deception up to bribery.

The spirit of advocacy in too many instances develops a pe-
culiar code of ethics which permits an advocate to do for a client
what he would not, without some hesitation at least, do for him-
self. This strange code permits him, in the interest of his client,
to misrepresent, deceive, lie, and suborn perjury. All of these

1922. ] "advocacy." 567

acts in any other relation than that of attorney and client he
would condemn. Stranger still, he even may think it improper
for the client to do things for himself that he, his lawyer, does
not hesitate to do for him as his representative. This illustrates
a strange sort of moral blindness which grows out of excessive
and unwise advocacy. There are men who, perhaps because of
familiarity with it, defend conduct of this kind who ought not to
defend it.

The advocate is in duty bound to protect the interests of his
client in every proper way, but for a fee he is not called upon
to sell his own soul. Temptations are sure to come to the attor-
ney that test the quality of his conscience and the strength of his
character. There are unworthy clients who for money seek to
buy not simply the experience and ability of an advocate, but also
his reputation and his honor. The man who is disloyal to his own
higher self in order to be loyal to a client is not only paying too
high a price for success, but is disqualifying himself for the high-
est success. Those who resist the temptations deserve praise and
honor in proportion to the severity of the test.

Most litigation grows out of controversy over certain alleged
facts. In many cases the lawyer cannot know and may never
know what the truth of the matter really is. It is also true that
in some classes of cases each side may be partly right and partly
wrong, but a careful distinction is drawn by the conscientious
advocate between civil and criminal cases. Although the guilty
man is entitled to counsel in order that his rights may be pro-
tected, it does not follow that a self-respecting lawyer should be-
come in effect a partner of a party in a civil case who obviously
is attempting to perpetrate a fraud. Just at this point comes
the great temptation in the practice of law. No sophistry ever
really convinces the lawyer that he has a right to smother his
intelligence and say that he is not called upon to decide upon the
merits of any case in advance. If he does not decide some cases
in advance he will soon come to be known as a partner in fraud
and in crime.

Like other professional men, lawyers are surrounded by cer-
tain conditions that hamper and limit their development. One of
the greatest of differences in workers in all fields is the degree of

568 8 VIRGINIA LAW REGISTER, N. s. [ Dec,

their inspiration by the student spirit, that attitude of mind that
makes practical life a constant course of study. The education
of men of this latter class is only finished when life is finished.
But with many professional men the deadly routine and the mak-
ing of the profession a business and only a business, tends to kill
the learning spirit. They become mere machines going through
a fixed routine.

There is a very wide distinction between the men who in some
measure live for a profession and the men who simply live on it.
Of professional men as a class but few attend conventions, but
few read technical magazines or books, and it is a rare man who
does the first stroke of work in any field of original research!
There are many professional men, not all of whom are lawyers,
who pay less for general technical books and magazines, and for
memberships in societies, and traveling expenses to meetings, than
they do for tobacco. The total number of members in the Ameri-
can Bar Association is about the same as the number of lawyers
in one American city.

Experience with the unprogressive man develops simply a kind
of manual and mental facility in the humdrum things and nearly
all improvement stops. And strange to say, the man of this class,
who has entirely finished his study, boasts that he is a practical
man and looks with some contempt upon the progressive man
who attacks the ancient theories with some new and improved
ideas. There was a time when the learned doctor at once took
some of the life out of a sick man by bleeding him. There was a
time when solemn, bewigged doctors of the law condemned poor
women to be hanged as witches. There still are abuses to cor-
rect and reforms to promote; and, figuratively speaking, the
bleeding and the hanging are still going on.

The desirable, if not necessary, qualities that go to make a
great lawyer are so numerous that it is discouraging to a beginner
to catalogue them. There is, however, some value in a catalogue
for one who is perhaps deficient in one quality can make it up by
emphasizing others that are a part of the desirable equipment.
It is easy to specify some of the essential qualities.

Before making this catalogue of the desirable qualities, and for
the purposes of contrast, a passing glimpse is taken of the other

1922. ] "advocacy." 569

side of the shield. It is well known that there are men, even in
quite civilized communities, whose ideal of a great lawyer is a
forceful, rather coarse, if not somewhat brutal, personality, un-
hampered by fine sensibilities or a too active conscience, and will-
ing to take up any task without too close a scrutiny of its merits.
It is hardly necessary to say that this conception of the profes-
sion as a whole is a base slander. The men who answer these re-
quirements unfortunately do exist, but they are not the great law-
yers, but rather the scavengers of a great profession.

The first requirements of the great lawyer are a good working
conscience and a strong personality. Added to these in the great
advocate is what, for a better description, we call a ready, work-
ing knowledge of human nature. Other important, if not essen-
tial, qualities are the ability to understand facts, an analytical,
alert mind, and a forceful command of language.

The great lawyer is a student of his fellow man. At no time
in a trial does the skillful attorney forget the variations in the
personalities with which he must deal. He understands the dan-
ger of weakening his case simply by a careless manner of dealing
with those who must participate in the proceeding. He knows
that people cannot with safety all be treated alike. He constantly
realizes he cannot retrace a false step, nor recall an unwise word
that has given offense. By experience he knows how easily a
friendly witness may be antagonized, or the court may be of-
fended, or adverse witnesses made more dangerous by oversight,
by carelessness; by bad manners, or by any unfortunate error of
speech or of conduct.

Either by instinct or by experience he has learned that even a
disagreeable voice may contribute to defeat, and to him it is ob-
vious that any conduct that naturally leads to aversion or dislike
lowers efficiency in one who seeks to lead others to his own point
of view. The wise attorney has learned in the school of experi-
ence that we are always more easily persuaded by one with an at-
tractive personality, and that a man's logic may fail to convince
because we do not like his manners. This wise and discriminat-
ing lawyer does not make the mistake of treating an adverse
party too severely, even where severity is justified, and he has
learned from the unwise actions of others as well as by bitter de-

570 8 VIRGINIA LAW REGISTER, N. S. [ Dec,

feat that the testimony of adverse witnesses is often strengthened
because the sympathy of jury and spectators has been aroused in
their behalf.

The partly unconscious effect of personality is an important
part of law practice and deserves careful study. We are born as
we are, but our conduct is what we make it. It is certainly de-
sirable to discover, if possible, why and how one unconsciously
offends and this knowledge is of practical value to the attorney.
It is well said that he knows best how to be a gentleman who
knows best how not to give offense. There is no doubt that one
of the qualities of the great lawyer is that of being a gentleman.

The greatest "verdict getters" with all their other qualities, have
intelligence, force, and charm is not always the least of these.
That law school would soon be marked that made of all its stu-
dents attractive, pleasing personalities ; that added to knowledge,
wisdom; to information, tact; and to intelligence, courtesy. The
inherent gentleman carries with him something that gives him
instant advantage wherever he may be. He receives a considera-
tion and commands an attention that it is somewhat difficult to
analyze and to understand. A man of this kind has back of him
and with him to speak for him the influence of the gentlemen of
all time.

Those who lack this high quality at once acknowledge their in-
feriority by their acts and their attitude and are immediately at a
disadvantage in a contest with a personality that is instinctively
respected and admired. This valuable quality of charm is not
simply a matter of birth, of education, of clothes, of family, of
race, or of sex, but of conduct and of a right relation to other
people. More than from anything else it grows out of thought-
fulness, good manners, and friendliness. Courtesy begets cour-
tesy, and he is liked who himself likes -others. The indispensable
price of friendship is to be a friend.

The three qualities of personality, reputation, and professional
ability are fused in an attorney and naturally are the main ele-
ments that constitute his ability as a lawyer. It is not always
easy to estimate their comparative force as a means of winning
success and their values may vary in different fields and- in dif-
ferent cases. It is undoubtedly true that technical professional

1922. ] "advocacy." 571

ability alone, however valuable it may be, does not always com-
mand success, and, as in other professions and in other fields, the
race is not always to the swift, nor the battle to the strong. In-
dustry and thoroughness are in many instances more than a
match for brilliant, but careless and lazy genius.

In every city and at nearly every county seat representatives
of the various classes of lawyers can be found. One of the num-
ber is the lawyer to whom the right side of the most important
case is likely to go. There is also the advocate who is naturally
called upon to help fraud to win. These men have made their
places in the community. The man with a shady reputation takes
that, as well as his trial brief, into court, and the man who is
known to the judge, to his fellow citizens, and to the jury for
honesty and fairness begins every trial with a distinct advantage
over an opponent without this reputation. These men of high
character and ability are not only the leaders of their profession,
but the trusted leaders of their fellowmen. They share with a
type of family physician the unlimited confidence and trust of the
community and their advice and assistance is sought on many
questions outside of the strict field of the law.

The practice of law, like that of medicine, is much concerned
with the abnormal. One profession has much to do with dis-
ease and suffering, and the other with injustice and crime, but
this contact need not develop a narrowing pessimism that tends
to make of this world mainly a place of anguish and of sin. The
correct and wider view makes work in both fields a service of
help and rescue of lessening suffering and combatting evil. The
lawyer is the natural champion to be called upon to defend right,
promote justice, protect the weak, and guard those priceless
heritages of the ages that we inadequately describe as freedom
and civilization. Through all the stress and strain the great
physician and the great advocate both come to realize more and
more that honesty and health are the normal conditions and that
the high task given to them is that of making these conditions
more nearly universal.

In conclusion, to summarize briefly what is discussed elsewhere,
the great trial lawyer, though not necessarily a great orator, must
be able to use language to produce results as a skilled craftsman

572 8 Virginia ww register, n. s. [ Dec,

uses a delicate and complicated tool. He must have sympathy,
tact and courtesy, and must know men and their ways. By study,
experience, and a trained intuition, he will also have acquired an
instant appreciation of the significance and force of evidence and
will have learned its correct order of presentation. He must be
able to control his temper and maintain his poise under trying
conditions, and it will steady him and keep him sane if he has a
sense of humor, which, however, he can hold in proper subjec-
tion. Finally, he must know the law.